Excerpt: - - the question of law involved in the writ petition also is very important i, therefore, order that the writ petition as well as the order of reference be posted for hearing before a full bench of five judges. literally construed, the requirements of the proviso will be satisfied if a single judge before whom a writ petition comes up for hearing orally directs that the matter be adjourned for being heard and determined by a bench of two judges. 9. clearly again, when a single judge adjourns a matter for being heard by a bench of two judges, the bench before which the adjourned matter is placed is not to function as an appellate court even in respect of the limited question whether the adjournment has been properly made or not......expressed by two division benches ofthis court with respect to the procedure to be followed by a single judge while adjourning a matter to be heard and determined by a bench of two judges under section 3 of the high court act. the question of law involved in the writ petition also is very important i, therefore, order that the writ petition as well as the order of reference be posted for hearing before a full bench of five judges.'we have heard counsel on the conflicting views about the scope of section 3, and this order is intended to dispose of the said controversy. the merits of the original petition will be considered separately. 2. section 3 of the kerala high court act empowers a single judge to exercise the court's powers under article 226(1) of the constitution, but the section.....

Judgment:

M.P. Menon, J.

1. This writ petition has been placed before us with the following order of the Chief Justice, apparently made in exercise of power under Section 6 of the Kerala High Court Act, 1958:--

'There is an apparent conflict between the views expressed by two Division Benches ofthis Court with respect to the procedure to be followed by a single Judge while adjourning a matter to be heard and determined by a Bench of two Judges under Section 3 of the High Court Act. The question of law involved in the writ petition also is very important I, therefore, order that the writ petition as well as the order of reference be posted for hearing before a Full Bench of five Judges.'

We have heard counsel on the conflicting views about the scope of Section 3, and this order is intended to dispose of the said controversy. The merits of the Original Petition will be considered separately.

2. Section 3 of the Kerala High Court Act empowers a single Judge to exercise the Court's powers under Article 226(1) of the Constitution, but the Section also contains a proviso in the following terms : --

'..........provided that the Judge before whomthe matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges.'

The aforesaid provision has been construed by one Division Bench (See 1985 Ker LN 521) to mean that a single Judge cannot adjourn a matter for being heard by two Judges except by means of a judicial order signed by the Judge himself. An oral direction, recorded by the Court Officer by way of an endorsement on the docket, will not be sufficient, according to this view. This is what the bench said : --

'The endorsement merely shows that an oral direction to that effect had been given by the learned single Judge. No such oral direction, or an endorsement of the Court Officer evidencing it, constitutes an order of reference under Section 3. What is postulated under that Section is a judicial order which has to bein writing and signed by the single Judge himself............... Although as a Division Benchwe have the power to hear and determine the Original Petition filed under Article 226 of the Constitution, being one of the matters specified under Section 3, such petition must be brought to us by means of a judicial order signed by the Judge himself as postulated under Section 3. This matter has not been so brought to us.Accordingly, place the Original Petition before the learned single Judge for appropriate orders.

3. The view taken by the other Division Bench is that there is nothing in the language of Section 3 to indicate that there should be an order in writing, that such an order should be a judicial one and that it should be signed by the Judge concerned. After referring to the practice of the Court where Division Benches have been acting on the strength of similar endorsements made on dockets, the learned Judges of the Bench also raised the question whether

'it is open to a Division Bench empowered to dispose of the matter under Section 4 of the High Court Act, to refer the case back to the single Judge who had adjourned the case..........'

4. Section 9 'of the Kerala High Court Act repeals only those provisions of the T. C. High Court Act, 1125 which relate to matters covered by the former. Many of the provisions of the T.C. Act are thus still intact, and operative. It is therefore necessary to notice that under Section 16 of that Act, the administrative control of the High Court is vested in the Chief Justice and that under Section 30, it is in his power to 'regulate the conduct of the business in the High Court'.

5. As for Section 3 of the Kerala Act, the first thing to be noticed is that it makes no mention of an 'order of reference', in writing or otherwise. The words 'refer', 'order', 'signed' etc. are significantly absent. Literally Construed, the requirements of the proviso will be satisfied if a single Judge before whom a writ petition comes up for hearing orally directs that the matter be adjourned for being heard and determined by a bench of two Judges. He is not required to give reasons or record them. In fact, he is not even 'hearing' the matter; the hearing and determination are left to a bench of two Judges when once the single Judge exercises his power of adjournment. There is also no scope for a judicial order in the sense that rights of parties are being settled. In our view, all that the Section requites is that the single Judge should indicate in some form in which the parties and the Registry of the Court could come to know that he is not hearing the matter, but is leaving it to a bench of two Judges. Invariably the indication is given in the presence of counsel; and when the Court Officer makes an endorsement, the Registry also comes to knowof the nature of the adjournment. A judicial order in writing and signed by the Judge is evidently not a requirement of the express language of the Section.

6. Even if there is doubt about the above construction, we think the practice of the Court should also influence and probably conclude the situation. True it is that single Judges often prepare detailed 'reference orders' and sign them, when circumstances warrnat it; there is no prohibition in the statute against such a course. It is however equally true that in very many situations such elaborate or reasoned orders are not written or signed. When the same question is raised in a number of cases and some of them are already before a Division Bench, it is usual for counsel on both sides to inform a single Judge about the situation when other similar petitions are posted before him, and for the learned Judge to orally direct that they too be posted along with the others. It will be a waste of time and energy to insist on a separate and reasoned order of reference on all such occasions. Division Benches of this Court have not been insisting on such empty formalities. The present Original Petition itself, we find, had earlier been posted before two or three different Division Benches and their Lordships of those benches had taken no objection at all to the Court Officer's endorsement, presumably because they were all aware of the practice of the Court.

7. We accordingly hold that an oral direction of a single Judge in the presence of counsel, followed by an appropriate endorsement by the Court Officer, will satisfy the requirement of Section 3 in the matter of adjourning a case for being heard by Division Bench, though in appropriate cases, a reasoned order in writing and signed by the Judge will be desirable.

8. We also feel that it will be proper for any bench of the Court not to decline to hear a matter placed before it under the administrative orders of the Chief Justice except perhaps on those rare occasions when the Judges constituting the bench feel embarrassed in taking it up either because of the nature of the cause or of the parties involved or counsel appearing, or other similar reasons.

9. Clearly again, when a single Judge adjourns a matter for being heard by a bench of two Judges, the bench before which the adjourned matter is placed is not to function as an appellate Court even in respect of the limited question whether the adjournment has been properly made or not. The distinction between the powers of a bench of two Judges under Section 5 of the Act on the one hand, and under Section 4(1) read with Section 3, on the other, cannot be overlooked. Where a bench of two Judges feels that a matter has not been placed before it as required by law, the proper course would be to return it to the Registry, instead of passing a judicial order in a matter which in its own opinion, is not before it. A bench to which a matter is adjourned by a single Judge under Section 3 is not a superior Court clothed with power to issue directions, expressly or impliedly, to the single Judge as to how or in what manner he should exercise his power, of adjournment.

10. We would accordingly answer the question raised by the second Division Bench by indicating that it will not be open to a bench of two Judges 'to refer the case back to a single Judge' once that Judge has exercised his power of adjournment under Section 3.